THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Friday, March 3, 1995 TAG: 9503030549
SECTION: LOCAL PAGE: B3 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
LENGTH: Medium: 87 lines
A case that might have decided, once and for all, if it is illegal for a doctor in Virginia to divulge a patient's confidences was settled Wednesday night, just before it was to be argued in the state Supreme Court.
The case was filed in 1993 in Norfolk by an employee of Sentara Health Care Systems against the company.
The employee, Dominic K. Lee, was admitted to Sentara Norfolk General Hospital in January 1993 with an HIV infection . His co-workers at Sentara headquarters, miles away, found out about his condition by reading his medical records via computer.
A Norfolk judge ruled last year that, while it may be unethical, it is not illegal for a doctor or hospital to divulge confidential patient information. This Supreme Court case was an appeal of that ruling.
Lee was a welfare coordinator for Sentara. His lawsuit sought $50,000 in damages. He claimed that the incident violated his right to confidentiality, hurt his relationship with colleagues and may have hurt his chances for career advancement.
Lee died in August, at age 29, while his case was on appeal. The case was scheduled to be argued this week before the Supreme Court.
The settlement is confidential. Lee's attorneys and Sentara's attorneys would not reveal details.
The case had drawn statewide attention. The Virginia Trial Lawyers Association, a group of 2,500 attorneys, had filed a friend-of-the-court brief on Lee's behalf.
In their legal brief to the Supreme Court, Lee's attorneys, Virginia and Christopher Shema of Chesapeake, argued, ``Public policy demands that an unlawful breach of a patient's right to confidentiality be actionable. A health care provider's breach of patient confidence is medical malpractice.''
To support their position, the Shemas noted that the Hippocratic Oath - a vow taken by physicians - requires that patient records be kept confidential.
The brief also notes that the Joint Commission on Accreditation of Healthcare Organizations recognizes a patient's right to privacy and confidentiality.
The commission's standards state, ``The hospital is responsible for safeguarding both the record and its informational content against . . . use by unauthorized individuals.''
The trial lawyers cited several states that recognize a patient's right to sue over confidentiality breaches.
``Patients and employees should be able to rely upon those entrusted with confidential information to do what is right and to keep that information private,'' the lawyers' group wrote.
But Sentara's attorneys, R. Barrow Blackwell and Ann M. Golski of Norfolk, wrote that the Hippocratic Oath may establish an ethical standard, but Virginia law does not recognize a patient's right to sue over a breach of confidentiality.
``The Hippocratic Oath is an oath pertaining to a physician's ethical duties; it does not create a private cause of action,'' the Sentara lawyers wrote.
``The Virginia General Assembly . . . has remained silent as to creating a general cause of action for wrongful disclosure of confidential information,'' Sentara's lawyers wrote.
The lawyers cited cases in five other states that do not recognize a patient's right to sue in confidentiality cases.
At best, Sentara claimed, Lee might have had the right to file a medical malpractice lawsuit; instead, he filed a lawsuit alleging breach of duty of confidentiality.
In any case, Sentara argued, patients now have ``a wide range of remedies'' to protect themselves, without creating a new right to sue.
For example, Sentara's lawyers wrote, ``The medical profession has certain ethical standards, including the Hippocratic Oath, to help ensure that confidences which should be kept secret are not divulged. A patient has the right to file a complaint with the State Board of Medicine alleging a violation of a physician's ethical duties.''
Any money paid by Sentara to Lee's estate will go to Lee's mother in Maryland, Christopher Shema said. ILLUSTRATION: Graphic
OATH OF DOCTORS
The Hippocratic Oath says: ``. . . Whatever, in connection with
my professional practice, or not in connection with it, I may see or
hear in the lives of men which ought not to be spoken abroad, I will
not divulge, as reckoning that all such should be kept secret . .
.''
by CNB